NYC Police Chokehold Death Probe Pits DA Against Public Advocate

New York City’s second-highest elected official is lined up against a prosecutor as she asks a judge to release evidence seen by a grand jury that cleared a white police officer in the choking death of an unarmed black man.

Public Advocate Letitia James, a Democrat who serves as the city government’s watchdog, is set to appear before New York State Supreme Court Justice William E. Garnett Thursday to argue for the release of evidence in the killing of Eric Garner. She will be joined by lawyers for the New York Civil Liberties Union and the Legal Aid Society.

James contends there is an “exceptional and manifest public interest” in unsealing the information and that while grand jury proceedings are normally secret, courts have in the past released minutes and other evidence “upon a showing of compelling and particularized need for access.”

Garner, 43, was killed by 29-year-old police officer Daniel Pantaleo during a confrontation on a Staten Island sidewalk on July 17 over the sale of untaxed loose cigarettes. Widely circulated videos of the incident showed Pantaleo applying a chokehold, which is prohibited by the New York City Police Department, provoked outrage and led to calls for the officer to be charged.

A grand jury in December declined to indict Pantaleo, just a week after Darren Wilson, a white officer in Ferguson, Missouri, was cleared by a grand jury in the killing of Michael Brown, an unarmed black 18-year-old.

Pantaleo, a lifelong Staten Island resident who’s been an NYPD officer for about eight years, said in a statement in December that he didn’t intend to harm anyone.

U.S. Probe

The incident prompted a civil-rights probe into Garner’s death by the U.S. Justice Department and spurred New York Attorney General Eric Schneiderman to seek special authority from Governor Andrew Cuomo to investigate killings by police of unarmed civilians, separate from inquiries by elected county prosecutors.

“The grand jury’s decision not to return an indictment has prompted a sustained wave of peaceful protests in New York City and across the country,” James said in a court filing. “Public figures and elected officials at every level of state, local and federal government have spoken out about the case and potential reforms are being actively considered and reviewed.”

Cameras, Landlords

James, 56, a Brooklyn native, was elected in 2013 to replace Bill De Blasio, who became the city’s first Democratic mayor in 20 years. She previously served for nine years on the New York City Council. Describing herself in a statement as the first woman of color to hold a citywide office in the city, she has pushed proposals for police to wear body cameras and for upgrades to the city’s “Worst Landlords Watchlist.”

In response to Garner’s death, De Blasio promised new training in police tactics for the department’s 35,000 officers, saying that chokeholds haven’t been allowed since the 1980s except “under the most extraordinary situation.”

While Richmond County District Attorney Daniel Donovan, who led the four-month investigation into Garner’s death, later sought limited disclosure of facts that were presented to the grand jury, most of those had already been reported. That prompted James’s request for full disclosure.

The secrecy of the grand jury records in New York contrasts with that of Missouri, where so-called sunshine laws allowed prosecutors to disclose testimony and evidence from the probe of Brown’s death in August.

Magna Carta

The use of grand juries dates back more than 800 years to the time of the Magna Carta, the document that asserted the principle that the English king is subject to the rule of law.

The Fifth Amendment to the U.S. Constitution established the use of grand juries, saying that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” a right that is also embedded in New York’s state constitution.

All felony cases in the state must be presented to a grand jury made up of 23 citizens, 16 of whom must be present to hear evidence and to deliberate. At least 12 jurors who have heard evidence the legal instructions must agree there is enough evidence and reasonable cause that a person committed a crime to charge them.

New York courts considering a request to unseal grand jury information must weigh multiple factors under a 1970 state Court of Appeals decision, such as preventing the escape of a defendant who is about to be indicted and protecting jurors from those being investigated.

Trust Damaged

James contends those standards don’t apply in the Garner case.

“Maintaining secrecy under these circumstances will only further erode and irreparably damage public trust in the justice system’s capacity to hold police accountable when citizens die at their hands,” James said in a court filing. “Disclosing information presented in these proceedings will help restore public confidence by giving critical context to the grand jury’s final determination and paving the way for the meaningful evaluation of potential reform measures.”

Donovan, a Republican who is running to replace the congressional seat vacated by Michael Grimm last year after he pleaded guilty to tax charges, argued in court filings that James is barred by state law from seeking the unsealing of the grand jury records.

James hasn’t proved that there is a need for the evidence to be revealed and that the public interest in grand jury secrecy “far outweighs the need for disclosure,” he said.

‘Fishing Expedition’

James’s request “for all the grand jury materials on the ground that they may inform her opinions or trigger further inquires is far from the type of particularized and compelling need necessary to set aside the presumption of confidentiality that adheres to grand jury proceedings,” Donovan said. “It is, instead, the very type of overly broad, vague demand that has been historically condemned as a ‘fishing expedition.’”

Many of the 50 witnesses who spoke to the grand jury did so under the impression that their testimony was secret, and disclosure of the minutes would allow them to be identified and open them up to “harassment or retaliation,” even if their names are blacked out, Donovan said.

The release of the grand jury information would also harm future probes by placing a “chilling effect” on witnesses, who may be less willing to participate, Donovan said.

Donovan had earlier sought release of facts including that the grand jury sat for nine weeks and heard from 50 witnesses, 28 of whom were police officers, emergency medical personnel and doctors, according to an order from Justice Stephen Rooney’s order allowing limited disclosure. The other 22 were civilians, the judge said. Donovan omitted requests for the release of witness statements or exhibits.

Photos, Autopsy

Sixty items were entered into evidence, including four videos, records of NYPD policies, procedures and training, as well as medical records and photographs from the scene of Garner’s death and his autopsy, Rooney said.

Garnett took over the case after Rooney stepped aside in December, citing his wife’s position as chairwoman of the Richmond University Medical Center, the hospital that employed the medics who responded to the scene of Garner’s arrest.

Rooney had originally been scheduled to hear arguments on Dec. 19 after an appeals court in Brooklyn overruled his decision to place James’s petition for the release of the information under seal.

The case is In the matter of the Investigation into the Death of Eric Garner, 080304/2014, 080296/2014, 080307/2014, 080308/2014, 080009/2015, New York State Supreme Court, (Richmond County).

New York City's second-highest elected official is lined up against a prosecutor as she asks a judge to release evidence seen by a grand jury that cleared a white police officer in the choking death of an unarmed black man.Public Advocate Letitia James, a Democrat who...